Pardeep Singh (Migration)

[2020] AATA 3478

Pardeep Singh (Migration) [2020] AATA 3478 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Singh

CASE NUMBER:  1921651

HOME AFFAIRS REFERENCE(S):          BCC2019/1472929

MEMBER:David McCulloch

DATE:13 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 May 2020 at 10:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled in a registered course of study – course enrolment cancelled – applicant injured – medical and family problems – indecisiveness and immaturity – near completion of current studies – evidence of intention to return to home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of India, born on 19 January 1998. The visa that has been cancelled was granted on 5 December 2016 for a period of stay until 15 March 2020. That visa was subject to condition 8202.

2. On 30 May 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 3 May 2018. The applicant provided a written response to the NOICC on 12 June 2019.  On 30 July 2019 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. The hearing was held on 8 May 2020, in which the applicant gave evidence and presented arguments. The Tribunal was assisted with the use of an interpreter in the Punjabi language, but the applicant chose to communicate in English. The applicant was represented by his registered migration agent who attended the hearing (by telephone).

6. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Migration Act 1958 (the Act), the visa may be cancelled. This is an application for review of a decision dated 30 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Act.

   Did the applicant comply with condition 8202?

9. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

11. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 3 May 2018. The applicant agreed that this was the case in the hearing.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The applicant’s migration agent provided a submission to the Department dated 11 June 2019 outlining various claimed extenuating circumstances beyond the applicant’s control as explaining the breach. This explanation provided as follows:

    As per the information provided by our client, he came to Australia on 10 January 2017 to study diploma leading to degree in IT from QUT. His diploma started in February 2016 and he completed two semesters but from the beginning he was having a hard time to adjust in the new environment and the difficulty to cope with high standards of IT study in his university. He did try his best but unfortunately IT was too difficult a subject for him and he realised that he was too immature to choose IT for his future carrier therefore he decided to change his stream and spoke to his parents in India. On the advice of his father he changed his stream to business and enrolled in bachelor in business in Holmes College. Our client has informed us that just after one semester Holmes College cancelled his COE in May 2018 without providing any prior information/notice which highly disappointed and depressed him.

    Our client informs us that he was only eighteen-year-old when he came to Australia. Being the only child in the family he was being spoilt and overpampered by his grandparents who kept on treating him as a baby of the house till he was in India, due to which he became careless, immature and an over dependent child. Seeing his over dependency on his grandparents his parents were very worried therefore decided to send him to Australia to make his future away from homely environment and become self-dependent. When in May 2018 he came to know about the cancellation of his COE then immediately he contacted his college and requested for a new COE. As informed by our client Holmes college asked him to wait for three weeks and come back for a new COE but unfortunately on 28 May 2018 he twisted his left knee/lower leg when he was trying to catch one of his friends who was falling, due to which he got his own knee sprained and became immobilised. He was immediately taken to Emergency Department of Queens Elizabeth II Jubilee Hospital. He had to go through very tough time during that period and pain for many months. Our client informs us that during that period he made up his mind to return back home as he was not able to bear the pain and more so he had to do everything himself which was making his pain worst. (Medical certificate attached)

    His grandparents were insisted upon him to come back home but his parents wanted him to complete his study and then return therefore he had no other option but to recover and enrol to study. After five months approximately in end October he started feeling better but then he came to know about the ill-health of his grandfather due to which he again decided to go back as he is extremely attached to his grandparents who have actually brought him up.

    Our client informs us that firstly his own health issues, his grandfather’s ill-health and in addition to that his parents’ insistence and constant instructions over the phone really disturbed his mental state due to which he became indecisive and went in depression. He has been repenting on his immature decision of discontinuing his studies. He feels extremely sorry for his absurd and foolish conduct and he has been realising that he committed a blunder by wasting his parents hard earn money and precious time of his life by discontinuing his studies. Being an over pampered child away from home, facing teething problems in a new environment, drastic changes in the standards and levels of study as compared to his schooling were the main reasons for the mistakes that he committed in the past.

    He further informs us that during his stay in Australia he has learnt to be a self-dependent and self-sufficient person but he will have no value without qualifications. He has a clear vision of his future carrier now thus he is extremely focused and determined to successfully complete his courses. He has already started his advance diploma in business and further looking forward to study a bachelor degree in Agri business which will help him take his family business of agriculture to next level.

    Our client informs us that he wants to add poultry farm and horticulture to their existing family business of agriculture therefore he has opted for bachelor degree in Agri business.

    On behalf of our client the response to why his visa should not be cancelled is as under:

    Our client realises his mistakes and deeply repents for his past conduct which happened due to his tender age and multiple issues that he got involved related to his medical and family issues. Our client admits that he was careless, indecisive and immature teenager at that time but now he is a 21-year-old man and fully understands his duties and responsibilities towards his future and his family hence requests the department to provide him at- least one opportunity to prove himself. He informs us that he is deeply sorry for his behaviour and feels embarrassed and ashamed to face his family which has always given unconditional financial, moral and psychological support to him.

    As informed by our client

    ·He came with a purpose of gaining qualifications in Australia but he never knew that it would be so hard for him to stay away from his family specifically his grandparents who adore him.

    ·He will go through tremendous hardships and embarrassment if he goes back without gaining anything from Australia. He is extremely apologetic to the department and his family.

    ·The circumstances according to him were beyond his control because due to his over protected and over pampered bringing up he failed to be self-dependent and decisive. He always looked upon his elders to take decisions for him. After coming in Australia, he did realise that IT was not his field of interest.

    ·He has never breached any law and since his arrival has stayed as a law-abiding non-citizen in Australia.

    ·He is currently enrolled in Advance diploma of business and bachelor degree in Agri business. He genuinely wants to study both the courses as the completion of his courses will be an asset to his future life.

    On behalf of our client we once again request the department to grant him an opportunity to complete his studies in Australia so that he can go back as a successful student and make himself and his family proud of him.

17. The applicant provided to the Tribunal a submission dated 6 May 2020 and received on the morning of the Tribunal hearing on 8 May 2020. That submission substantially contains content that is the same as the submission to the Department extracted above. The submission also indicates that the applicant has obtained a new Confirmation of Enrolment with the same college on 19 August 2019. The Advanced Diploma in Business will finish in June 2020. The applicant has successfully completed six out of eight units. Evidence from the education provider was provided establishing this. The applicant will then undertake a Bachelor in Agriculture which will help him with his family business in India.

18. The submission stated that the applicant realises and deeply regrets his past mistakes, which happened due to his tender age and multiple issues involving his medical and family problems. The applicant admits that he was careless, indecisive and an immature teenager at the time but has now matured and understands his duties and responsibilities. The applicant will go through hardships and embarrassment if he returns to India without gaining skills in Australia.

19. In the hearing the Tribunal put to the applicant that it had difficulty accepting that the minor knee injury that he had provided medical evidence of suffering in May 2018 prevented the applicant enrolling in a registered course and studying for a period of five months. The medical evidence indicated a twisted left knee which showed no fractures. The applicant provided a medical certificate requiring rest for only a week. The Tribunal also indicated that it was hard to accept that illness of the applicant’s grandfather which did not cause the applicant to return to India would have been the significant reason for the applicant not enrolling and studying.

20. The Tribunal also put to the applicant that if there were family or medical issues preventing the applicant studying than he should have enrolled in a registered course and sought a deferral on compassionate or compelling grounds.

21. In response, the applicant indicated that his non-enrolment was due to a combination of factors but accepted that he was negligent in not meeting his visa requirements. This was due to the applicant’s depression and indecisiveness not knowing what to do next after he failed to make good progress in the first semester of the Bachelor of Business. The applicant and his migration agent indicated the youth and immaturity of the applicant. Ultimately, it was acknowledged that this youth and immaturity was the key cause of the applicant not being enrolled in a registered course for a period of approximately 14 months while he held the visa. The applicant’s migration agent submitted that the applicant had admitted to him that he was a ‘spoilt brat’ as explaining breaches. However, it was submitted that the applicant has now significantly matured as demonstrated by his current progress in and commitment to his studies.

22. The Tribunal is not satisfied on the evidence that there are significantly extenuating circumstances beyond the applicant’s control that explain his failure to be enrolled in a registered course for 14 months.  The Tribunal considers that the key reason for the breach was indecisiveness and immaturity on the part of the applicant. This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

23. Evidence provided by the applicant and the education provider confirms that the applicant is currently progressing well in an Advanced Diploma of Business, due to be completed in June 2020. The applicant has successfully completed six out of eight units.  The applicant is then enrolled in a Bachelor of Agribusiness due to commence in August 2020. The applicant indicates that that it is his intention to use this study in Australia to facilitate the expansion in agriculture of his family’s business activities in India.

24. The applicant also provided evidence of the completion of a Certificate III in Security Operations studied from November 2019 until January 2020. In the hearing the applicant indicated that this was to facilitate part-time employment as a security officer.

25. The applicant indicates that it will be a significant hardship if the visa remains cancelled, in that he would not be able to complete and continue his planned studies. It will also be a waste of significant funds expended by his family for his studies and cause shame and embarrassment for the applicant.

26. The applicant apologises for his lapses in terms of the significant breach of his visa requirement to be enrolled in a registered course. The applicant indicates that he has now matured and committed to his courses of study.

27. The Tribunal takes as significantly adverse to the applicant that he has not been enrolled in a registered course for a period of approximately 14 months. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain this breach.

28. The Tribunal considers that the main reason for the breach is indecisiveness and immaturity on the part of the applicant. There was a reasonable degree of candour by the applicant and his migration agent in relation to this.

29. However, the Tribunal accepts, based on the applicant’s more recent study performance, that he has now overcome his indecisiveness and maturity. The applicant is making good progress in and has almost completed an Advanced Diploma of Business. The applicant has also completed, at the same time, a Certificate III in Security Operations to facilitate part-time employment to fund his study and stay in Australia. The Tribunal accepts the intention and bona fides of the applicant in wishing to progress with a Bachelor of Agribusiness to facilitate family business opportunities on return to India.

30. The Tribunal accepts the not insignificant hardship to the applicant if the visa remains cancelled in not being able to complete the Advanced Diploma of Business, which he has almost completed, and being unable to progress to the Bachelor of Agribusiness.  The Tribunal accepts that there will be shame on the part of the applicant and disappointment to his family if he has to return to India without making the academic progress desired.

31. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of the applicant being barred from applying for many visa categories offshore for a period of three years.

32. The Tribunal weighs the discretionary matters. The breach by the applicant for a period of 14 months in terms of not being enrolled in a registered course is a significant breach. As indicated, the Tribunal is not satisfied that there are compelling or compassionate circumstances which justify the breach. This is significantly adverse to the applicant. The Tribunal notes that there would need to be quite significant countervailing factors to cause the Tribunal not to exercise its discretion to cancel the visa in these circumstances.

1. However, the Tribunal considers, on balance, that there are such countervailing circumstances in this case. These include, in particular: the applicant’s positive academic progress over the last 10 months; and the fact that the applicant would appear to be about to successfully complete the Advanced Diploma of Business with a genuine desire to continue to the Bachelor degree while also, simultaneously with the Advanced Diploma of Business, studying and completing a Certificate III in Security Operations. The commitment by the applicant to his study, and now to his visa obligations, is demonstrated by the applicant enrolling in and progressing with the Advanced Diploma of Business in the environment of uncertainty as to whether the applicant would be able to complete this course if the Tribunal were to determine that the visa should remain cancelled.

2. The Tribunal considers that it would be a significant hardship to the applicant if he had to return to India without completing or progressing with his planned studies.

3. Balancing discretionary matters, the Tribunal determines in the circumstances not to exercise its discretion to cancel the visa.

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)    a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)     must be enrolled in a full time registered course; and

   (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.